Judge Upholds New York City's Predictable-Scheduling Law

Fast-food and retail employers in New York City must comply with both the city's predictable-scheduling law and the state's wage and hour laws, according to a recent court ruling.

State Trial Judge Arthur Engoron dismissed a lawsuit on Feb. 18, finding that the city's scheduling regulation isn't pre-empted by state law. Covered employers in the Big Apple, therefore, must continue to ensure that their policies and practices align with employee-scheduling rules outlined in the 2017 Fair Workweek Law.

"Consistent and predictable schedules make life better for all of us, and we are pleased the court has upheld this critically important city law," said New York City Corporation Counsel James Johnson. 

Opponents of predictable-scheduling laws, however, argue that such laws limit flexibility by, for example, making it harder for employers to find someone to cover a shift for a worker who needs to take time off with little notice. 

Will the business groups that opposed the law appeal the decision? "We're exploring all options for next steps," said Angelo Amador, executive director of the Restaurant Law Center in Washington, D.C. "We'll make a decision before the next deadline." 

We've rounded up articles and resources from SHRM Online and other trusted media outlets on predictable scheduling laws.

No Conflict Found

The International Franchise Association, New York State Restaurant Association, and the Restaurant Law Center argued that New York City's law is pre-empted by state laws on employee scheduling and wage payments. But Engoron disagreed. The city's predictable-scheduling law "does not prohibit what the state allows and does not allow what the state prohibits, and employers can comply with both," he said. "This city regulation takes nothing away from what the state government has done."

(Bloomberg Law)

2017 Scheduling Laws

The New York City Council and Mayor Bill de Blasio approved five employee-scheduling laws—related to breaks between shifts, predictable hours, on-call scheduling and more—which took effect on Nov. 26, 2017. The laws apply to employers in the fast-food and retail industries, so employers in the Big Apple need to check whether they fall within the "retail" and "fast food" definitions under these laws.

(SHRM Online)

City and State Trend

San Francisco was the first city to pass a comprehensive predictable-scheduling law in 2015, and cities such as Chicago, New York City, Philadelphia and Seattle followed. Oregon became the first state to approve a scheduling law when Gov. Kate Brown signed S.B. 828 in 2017. "If more cities and states pass predictive scheduling measures, employers will have to either tailor policies to geographic regions or adopt a universal policy by selecting the most restrictive requirements," said Courtney Blanchard, an attorney with Nilan Johnson Lewis in Minneapolis. Employers often blend the two approaches by creating policies with some "universal" provisions and limiting the most burdensome practices to specific regions, she added.

(SHRM Online)

Democrats Consider Nationwide Law

The proposed Schedules That Work Act—which has not passed in prior legislative sessions—would require employers to provide retail, food service and cleaning service employees with their schedules in advance and to pay premiums when schedules are changed, when employees report to work but are sent home, and when they work back-to-back shifts. The bill would also require certain businesses to engage in an interactive dialog with workers who request schedule, assignment and work location changes. Sen. Elizabeth Warren, D-Mass., and Rep. Rosa DeLauro, D-Conn., introduced the legislation in October 2019.

(SHRM Online)

How to Address Predictable Scheduling Laws

Given the recent rise in popularity of these laws, it is important for employers to understand what these laws are, where they are most likely to encounter them, and what steps they can take to make sure they're abreast of the most up-to-date compliance strategies.

(SHRM Online)